Gujarat High Court
Chhaganbhai Becharbhai Patel vs Surat Municipal Corporation & 2 on 7 June, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/15915/2008 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15915 of 2008
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CHHAGANBHAI BECHARBHAI PATEL....Petitioner(s)
Versus
SURAT MUNICIPAL CORPORATION & 2....Respondent(s)
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Appearance:
MR BAIJU JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR NIRAJ ASHAR, AGP for the Respondent(s) No. 2
MR KAUSHAL D PANDYA, ADVOCATE for the Respondent(s) No. 1
MR TULSHI R SAVANI, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 07/06/2017
ORAL ORDER
Heard learned advocates for the parties.
2. The petitioner who is member of respondent No.3 co-operative society has prayed by filing the present petition as under.
"The plan produced at Annexure-G sanctioned by the respondent no.1 on 16/12/2008 may kindly be quashed and set aside, the respondent no.1 may be directed to take appropriate actions against the respondent no.3 society and the respondent no.2 may be directed to initiate appropriate actions under the provisions of the Bombay Land Revenue Code against respondent no.3 for violation of the provisions of the Bombay Land Revenue Code."
2.1 By way of interim relief, it is prayed as under.
"Pending the hearing and final disposal of this Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Aug 12 04:49:31 IST 2017 C/SCA/15915/2008 ORDER petition, this Hon'ble Court may be pleased to stay the execution, implementation and operation of the plan sanctioned by the respondent no.1 and the respondent no.1 may be directed to take appropriate actions against the respondent no.3 society and the respondent no.2 may be directed to initiate appropriate actions under the provisions of the Bombay Land Revenue Code against respondent no.3 for violation of the provisions of the Bombay Land Revenue Code."
3. As per the case of the petitioner in the petition, respondent No.3 co-operative society is a housing society. It is further stated that plot No.17 in the society is a common plot and is to be kept as common plot, however the society has proposed to use the said plot for constructing a commercial complex, which is in violation of the laws of the society and further in violation of the provisions of the Bombay Provincial Municipal Corporation Act, 1949. A Lavad Suit No.398 of 2008 has also been filed by the petitioner against the society in respect of the said grievance.
3.1 On the other hand, the case of the respondent No.3 society is that plot No.17 was never kept as common plot, it was a plot which was given number and in respect of which development permission for residential-cum-commercial construction has been granted by respondent No.1 Municipal Corporation. The rival case has been elaborated in the pleadings of the petition and the reply filed thereto.
3.2 It appears that in the Lavad Suit petitioner-plaintiff filed application for interim injunction. The Court of Board of Nominees granted stay on 12th August, 2008 which was vacated on 12th Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Aug 12 04:49:31 IST 2017 C/SCA/15915/2008 ORDER November, 2008. It is stated by the petitioner that on the date of pronouncement of the order on 12th November, 2008, upon request, the Court of Board of Nominees extended the stay earlier granted for a period of 10 days so as to enable the petitioner to challenge the order before higher forum. It further appears that thereafter against the order vacating injunction, petitioner-plaintiff filed Revision Application under Section 150(9) of the Gujarat Co- operative Societies Act before Gujarat Co-operative Tribunal. The Revision filed by the petitioner came to be allowed as per order dated 01st October, 2011, whereby Tribunal directed to maintain status quo with regard to subject matter plot.
4. Learned advocate for the petitioner submitted that sanctioning of plan for construction by respondent-Municipal Corporation was in violation of interim order of status quo and that despite currency of the interim order of status quo, plans were passed. What is pleaded and stated in this regard by the petitioner in his rejoinder affidavit that the Tribunal had granted status quo while making notice returnable on 24th November, 2008 and that the said order was extended. It was stated that a misrepresentation was made by the respondent No.3 co- operative society to the respondent No.1 Municipal Corporation that injunction was vacated and on the basis of such statement, the Corporation sanctioned the plan on 16th December, 2008 though status quo was operating. Be as it may. It is not necessary to enter into the said aspect for the reason that it is the Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Aug 12 04:49:31 IST 2017 C/SCA/15915/2008 ORDER position obtained that the Revision Application No.190 of 2008 against vacation of interim order in the lavad suit has been allowed and the status quo has been ordered in respect of the plot in question as stated above.
5. Considering the submissions by learned advocates for the parties and further having regard to the facts obtaining as above, the position is that the Lavad Suit No.398 of 2008 instituted by the petitioner-plaintiff is already pending. The question whether the plot No.17 of the society could be put to use for commercial-cum-residential building or the same is required to be kept open as common plot, is at large before the Board of Nominees in the suit. The prayer in this petition about cancellation of plan for construction is dependent upon the outcome of the lavad suit. When the lavad suit is pending and the parties are to lead evidence before the Board of Nominees in the process of adjudication of the suit, the order which this petition books is that the plan of construction/development permission granted by respondent No.1 Corporation in respect of plot No.17 in question may not be acted upon, to be guided by and to be subject to the final outcome of the lavad suit.
6. Accordingly this petition is disposed of by providing that plan of construction for development permission granted by respondent No.1 Municipal Corporation in respect of plot No.17 in question shall not take effect and shall not be acted upon during the pendency of the Lavad Suit since the same is to be Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Aug 12 04:49:31 IST 2017 C/SCA/15915/2008 ORDER tried by the Board of Nominees on the very controversy. This will be without prejudice to the rights and contentions of the parties in the lavad suit. It is further observed and directed that the Board of Nominees may take up lavad suit which is of the year 2008, expeditiously and decide the same preferably on or before 31st March, 2018.
7. The present petition stands disposed of in the aforesaid terms.
Rule is made absolute in the aforesaid
terms.
(N.V.ANJARIA, J.)
Anup
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